Bankruptcy Litigation

This panel will discuss “Stern problems” regarding bankruptcy court jurisdiction and the standing of various parties in light of the Supreme Court’s ruling in Executive Benefits Insurance Agency v. Arkison in order to identify simple solutions to these complex constitutional problems. The faculty will explain the key Supreme Court cases on constitutional jurisdiction and apply these cases to fact patterns involving preference claims, a Ponzi scheme case, a typical fraudulent conveyance claim, and a typical state law contract claim. The panel will also present the leading cases on standing and attempt to integrate a discussion of standing into the fact patterns.

Conflict and Controversy over Injunctions, Releases and Related Protective Relief

A broad array of potential restructuring clients — private equity, examiners, traditional bank clients, industry clients, etc. — will share their thoughts about best practices, dos and don’ts, and helpful anecdotes. What characteristics distinguish a great bankruptcy or restructuring practitioner? What advice should someone give to younger professionals in the industry who want to be future leaders? What are some examples of the challenging ethical dilemmas that younger professionals face, and how should they be handled? How will changes in the industry impact younger professionals who want to remain in the industry for their entire career?

This panel will provide helpful guidelines for creating clear client expectations, adequately defining work scope and managing fees when engaging FAs and expert witnesses. We have all had cases where clients were unhappy because work product didn’t meet expectations or fees were significantly higher than expected. This panel will help the practitioner learn how to use financial professionals more effectively to decrease the risk of having an unhappy client.

Do you know the correct procedural answer, and even if the answer is “yes,” can you explain to your client why the practical answer might still be “no”? Corporate bankruptcy attorneys need to understand the procedural and practical effects of a bankruptcy judge’s discretion in key and routine motion practice. This session is great for younger attorneys who are learning the ropes, experienced attorneys who could use a procedural refresher, and bankruptcy judges who want to be sensitive to the practitioner’s viewpoint as to why a procedural appeal right might not always be a practically accessible appeal right.

The panel will discuss due diligence requirements before bringing suits, suits or demands made for leverage, asserting claims in excess of estate value, and ethics complaints and litigation advantages.

Contested evidentiary hearings in chapter 11 confirmation battles have one near-constant attribute: They are expert witness-intensive undertakings. Whether relating to the value of a secured lender’s collateral, the appropriate discount rate to be applied in valuing a payment stream provided under a plan, compliance with the best-interests-of-creditors test, feasibility or any number of other potentially contested issues, presenting expert testimony is at least worth considering, if not required. Panelists will focus on the presentation of expert testimony in contested commercial chapter 11 cases, identify the issues that may require expert testimony, discuss how to locate an appropriate expert, and offer their views on how to prepare and present an expert though the discovery and trial stages. This will not be a presentation on the same old real estate appraisal evidence that most experienced practitioners can recite in their sleep (“I considered the income approach, the comparable-sale approach and the cost approach.” YAWN). Rather, the panel will focus on presenting, and cross-examining, the sorts of sophisticated financial experts that testify regarding the various elements of plan confirmation.

Using Available Technologies in Bankruptcy Litigation — From the Basics to the Cutting Edge

Latest post-petition interest litigation, make-whole payments (School Specialty, AMR), OID, etc. (ResCap, KV Pharma); enforceability of intercreditor agreements; class-action certification in bankruptcy (Rodriguez); settlement payments (Quebecor); post-Stern consent to jurisdiction cases (Sixth, Seventh and Ninth Circuits); § 502(d) disallowance under KB Toys; fraudulent transfer update (Tribune, Sentinel)

After you have found your valuation expert, how do you know that the expert’s report is accurate? This panel will discuss some of the red flags that should cause you to raise some questions with your own expert (or consider asking the other side’s expert in cross-examination), and will discuss how organization might make it easier or harder to catch red flags.